Alvey, C. J.,
delivered the opinion of the Court,
James McCurley, a widower with several children, and Susannah S. Stauter, a widow with one child, were married in the spring of the year 1867; and in contemplation of the marriage they entered into a marriage settlement, [443] dated the 28th of March, 1861. By this settlement, all the property belonging to Mrs. Stauter was secured to her separate use and control, and exclusive of all marital rights of her intended husband; and in consideration of the marriage, and of the full and complete surrender and relinquishment of all right and claim to dower in the real estate, and of distributive share of the personal estate, of the intended husband, the parties entered into the following stipulation, the one with the other:
“ That the said Susannah S. Stauter shall, if she survive the said James McCurley, receive at his death, from said McCurley’s estate, one dwelling-house, to be vested in her absolutely, in lieu of dower, * * *, and shall resign, and she doth now, by these presents, resign and acquit, all right, title or claim to dower, or distributive share, in the estate of said James McCurley, to which, as his widow, she would, without this, be otherwise by law entitled.”
After the marriage and until within a period of less than two years prior to the death of the husband, which occurred in March, 1881, the parties lived happily together as man and wife ; but unfortunate dissensions and alienation of feeling occurred, which resulted in a separation of the parties; and this was the state of things at the time of the death of Mr. McCurley. He left a considerable estate, amounting to about §100,000, composed principally of fee simple and leasehold property in the city of Baltimore. He disposed of his entire estate by will, which he made during the period of alienation from his wife. By his will he recognized his obligation under the covenant in the marriage settlement, and he attempted to discharge that obligation, by a bequest of a small leasehold dwelling-house and premises, on North Strieker street, to his wife. But this bequest the widow has renounced, as being in fraud of the covenant in the marriage settlement. And the hill in this case is for specific performance of the covenant, and the complainant charges that this bequest [444] to her was simply illusory, and was made with a studied design of depriving her of what was really intended originally she should have, and of putting her off with a provision wholly inadequate and inappropriate to her needs, and in fraud and disregard of her just rights under the deed of settlement. She charges that the house and premises bequeathed to her by the will, are of small value, in an ohjectionable location, and are subject to a considerable ground-rent; whereas the house really built for her, on West Baltimore street, and which was designed to come to her, in the event of her surviving her husband, in fulfilment of the requirement of the covenant, is of far greater value, less ohjectionable in location, and in every respect better suited to her condition and comfort, than the house on Strieker street; but which house thus designed for her, on West Baltimore street, the husband, shortly before his death, conveyed to his daughter, Mrs. Eeed.
If the case stated in the bill be clearly made out by the proof, there certainly ought to be a remedy for the grievance suffered by the widow.
The terms .of the covenant are exceedingly indefinite, and difficult to construe. It is plain enough that the complainant, in the event of surviving her husband, was entitled to receive a dwelling-house from his estate. But what sort of a dwelling-house, — of what size, style or value, or where located, or whether of fee simple or leasehold,-or by whom to be selected, or whether it was to he purchased or built from the assets of the estate, or be confined to a selection from the dwelling-houses that the husband might leave as part of his estate, — are questions in regard to which the covenant is silent. The most that can be done, in regard to these matters, is to make inferences from the surrounding circumstances of the case, as to the real intention of the parties.
It is very clear, upon the terms of the covenant, that the complainant did not become entitled to the settlement [445] of any dwelling-house before the death of her husband, hut only in the event that she should survive him. She acquired, therefore, no right or title to any particular dwelling-house before the death of her husband; and there is nothing in the terms of the' covenant to justify the conclusion, either that the husband had the right to conclude the wife by his will, or that she had the right of selection after his death. And though the husband may have intended, or in fact built, a particular house, with a view to the fulfilment of the covenant with his wife, that did not bind him to set apart that particular house, and none other, for her use and benefit, under the covenant. Until his death, the wife had no right to claim a dwelling-house, and then only such dwelling-house as would reasonably answer the requirement of the covenant. The whole question, therefore, comes to this: What would be a reasonable compliance with the covenant, according to the events and circumstances of the case ?
The proof shows that the husband and his iainily occupied a respectable position in society, though plain and unostentatious in their mode and style of living. It cannot he supposed that the husband, at the time of making the contract, intended his wile, in the event of her surviving him, to live in a mode and style less comfortable, or in appearance less respectable, than that in which he and his family had lived up to the time of his death. In conformity to this supposition, it is made clear upon the proof, that the house on West Baltimore street, in which he and his wife had lived for several years, was really designed for his wife in the event of her surviving him. The proof in the case, of his acts and repeated declarations upon the subject, make this clear beyond doubt. And hut for the unfortunate estrangement that occurred, there can he but little reason to doubt that he would have designated that particular dwelling-house for his wife, instead of the one on Strieker street. But, as we have said, [446] he was not hound to set apart any particular dwelling-house, in anticipation of the event upon the occurrence of which alone the wife would become entitled.
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Alvey, C. J.,
delivered the opinion of the Court,
James McCurley, a widower with several children, and Susannah S. Stauter, a widow with one child, were married in the spring of the year 1867; and in contemplation of the marriage they entered into a marriage settlement, [443] dated the 28th of March, 1861. By this settlement, all the property belonging to Mrs. Stauter was secured to her separate use and control, and exclusive of all marital rights of her intended husband; and in consideration of the marriage, and of the full and complete surrender and relinquishment of all right and claim to dower in the real estate, and of distributive share of the personal estate, of the intended husband, the parties entered into the following stipulation, the one with the other:
“ That the said Susannah S. Stauter shall, if she survive the said James McCurley, receive at his death, from said McCurley’s estate, one dwelling-house, to be vested in her absolutely, in lieu of dower, * * *, and shall resign, and she doth now, by these presents, resign and acquit, all right, title or claim to dower, or distributive share, in the estate of said James McCurley, to which, as his widow, she would, without this, be otherwise by law entitled.”
After the marriage and until within a period of less than two years prior to the death of the husband, which occurred in March, 1881, the parties lived happily together as man and wife ; but unfortunate dissensions and alienation of feeling occurred, which resulted in a separation of the parties; and this was the state of things at the time of the death of Mr. McCurley. He left a considerable estate, amounting to about §100,000, composed principally of fee simple and leasehold property in the city of Baltimore. He disposed of his entire estate by will, which he made during the period of alienation from his wife. By his will he recognized his obligation under the covenant in the marriage settlement, and he attempted to discharge that obligation, by a bequest of a small leasehold dwelling-house and premises, on North Strieker street, to his wife. But this bequest the widow has renounced, as being in fraud of the covenant in the marriage settlement. And the hill in this case is for specific performance of the covenant, and the complainant charges that this bequest [444] to her was simply illusory, and was made with a studied design of depriving her of what was really intended originally she should have, and of putting her off with a provision wholly inadequate and inappropriate to her needs, and in fraud and disregard of her just rights under the deed of settlement. She charges that the house and premises bequeathed to her by the will, are of small value, in an ohjectionable location, and are subject to a considerable ground-rent; whereas the house really built for her, on West Baltimore street, and which was designed to come to her, in the event of her surviving her husband, in fulfilment of the requirement of the covenant, is of far greater value, less ohjectionable in location, and in every respect better suited to her condition and comfort, than the house on Strieker street; but which house thus designed for her, on West Baltimore street, the husband, shortly before his death, conveyed to his daughter, Mrs. Eeed.
If the case stated in the bill be clearly made out by the proof, there certainly ought to be a remedy for the grievance suffered by the widow.
The terms .of the covenant are exceedingly indefinite, and difficult to construe. It is plain enough that the complainant, in the event of surviving her husband, was entitled to receive a dwelling-house from his estate. But what sort of a dwelling-house, — of what size, style or value, or where located, or whether of fee simple or leasehold,-or by whom to be selected, or whether it was to he purchased or built from the assets of the estate, or be confined to a selection from the dwelling-houses that the husband might leave as part of his estate, — are questions in regard to which the covenant is silent. The most that can be done, in regard to these matters, is to make inferences from the surrounding circumstances of the case, as to the real intention of the parties.
It is very clear, upon the terms of the covenant, that the complainant did not become entitled to the settlement [445] of any dwelling-house before the death of her husband, hut only in the event that she should survive him. She acquired, therefore, no right or title to any particular dwelling-house before the death of her husband; and there is nothing in the terms of the' covenant to justify the conclusion, either that the husband had the right to conclude the wife by his will, or that she had the right of selection after his death. And though the husband may have intended, or in fact built, a particular house, with a view to the fulfilment of the covenant with his wife, that did not bind him to set apart that particular house, and none other, for her use and benefit, under the covenant. Until his death, the wife had no right to claim a dwelling-house, and then only such dwelling-house as would reasonably answer the requirement of the covenant. The whole question, therefore, comes to this: What would be a reasonable compliance with the covenant, according to the events and circumstances of the case ?
The proof shows that the husband and his iainily occupied a respectable position in society, though plain and unostentatious in their mode and style of living. It cannot he supposed that the husband, at the time of making the contract, intended his wile, in the event of her surviving him, to live in a mode and style less comfortable, or in appearance less respectable, than that in which he and his family had lived up to the time of his death. In conformity to this supposition, it is made clear upon the proof, that the house on West Baltimore street, in which he and his wife had lived for several years, was really designed for his wife in the event of her surviving him. The proof in the case, of his acts and repeated declarations upon the subject, make this clear beyond doubt. And hut for the unfortunate estrangement that occurred, there can he but little reason to doubt that he would have designated that particular dwelling-house for his wife, instead of the one on Strieker street. But, as we have said, [446] he was not hound to set apart any particular dwelling-house, in anticipation of the event upon the occurrence of which alone the wife would become entitled.
That a Court of equity has jurisdiction, upon application for specific performance, to decree the assignment of a particular house, or the erection or purchase of a house, to gratify the requirement of the contract sought to be specifically performed, would seem to admit of no question or doubt. But in all such cases, the agreement must be sufficiently definite to guide the Court in the direction to be given for the specific performance, or, at any rate, that it may be made certain and definite upon proper inquiry. Storer vs. Great Western Railway Co., 2 Y. & Coll. Ch., 48, 53; Wilson vs. Furness Railway Co., L. Rep., 9 Eq., 28; Lytton vs. Great North. Railway Co., 2 Kay & John., 394; Hood vs. North-Eastern Railway Co., L. R., 8 Eq., 666, and same case, L. R., 5 Ch. App., 525; Wilson vs. Northampton & Banbery Junc. Railway Co., L. R., 9 Ch. App., 279. In the last mentioned, case, a railroad company agreed, for valuable consideration, with the landowner to erect and fit up a station on certain lands which they had bought from him; but the agreement contained no further description of the station, nor any stipulation as to the use of it. The company refused to erect the station in the specified place, but substituted one at a distance of two miles therefrom. This substituted station the landowner refused to accept in lieu of the one to which he was entitled under the agreement. And the Court, upon application for specific performance, while holding that the case wrns fully within- the jurisdiction for specific performance of the agreement, concluded that because of the indefinite character of the agreement, more complete justice could be done by awarding compensation, by way of damages, under the Stat. 21 & 22 Vict., known as Lord Cairn’s Act, which only applies in cases where the Court has jurisdiction to entertain the application for specific performance.
[447] In the case before us, though the terms of the covenant be very indefinite in many respects, yet it is contended that the subject-matter of the covenant was made entirely certain by the action of the husband in his life-time, by selecting the particular house that he intended for his wife, and which she was willing to accept. But that house, as before stated, was disposed of in the life-time of the husband; and the proof does not show that he left any other corresponding house that could be awarded to the wile in fulfilment of the contract. The complainant contends, however, that the covenant constituted a charge upon the estate of the husband, including a house on West Baltimore street, conveyed to Mrs. Reed, and therefore, as Mrs. Reed was a volunteer and took with notice, that house still remains subject to the operation of such charge. But in this proposition we do not concur. The conveyance to Mrs. Reed, though not for a valuable consideration, was on good consideration; and unless the house was subject to an existing lien or charge, or the estate of the deceased at the time of his death was insufficient to gratify the requirements of the covenant, the conveyance of the house on West Baltimore street to the daughter could not ho disturbed. The covenant created no specific lieu; and it was only in default of providing and setting apart a suitable dwelling-house for the widow, that the estate becomes liable for a sufficient amount either to build or purchase such dwelling-house for her.
Whether the property on North Strieker street, bequeathed to the widow with a view of performing the covenant, be a reasonable performance thereof, would, upon the evidence, appear to he more than doubtful. While there may he no real objection to the location, the evidence shows beyond doubt that the property is of comparatively small value, and is subject to an annual ground-rent of 064. It is variously valued from 01500 to 03000 ; but, according to the most reliable evidence, its real value [448] is about $2000. This, when compared with the value of the property on West Baltimore street, which the husband ■certainly intended for his wife, makes such a considerable difference, that it is impossible for the Court to say that the bequest to the wife was a just or reasonable performance of the covenant; and if it was not, clearly, the widow was justified in rejecting it. Nothing short of a fair and reasonable performance would gratify the ■covenant; and it was certainly not within the power of the husband so to dispose of his property by will as to defeat or conclude the rights of the widow under the •deed of settlement. Gregor vs. Kemp, 3 Swanst., 404, in note.
The relief prayed in the bill is in the alternative ; either that the complainant .may have a dwelling-house suitable to her condition and circumstances in life, to be vested in her absolutely, or a sum of money equivalent to the value of such house. In the present condition of the case, ■specific execution of the covenant would be attended with no little difficulty; and as there has been no special objection taken to the jurisdiction of the Court to grant relief by way of compensation, that, perhaps, is the most just •and equitable mode of administering relief under the peculiar circumstances of this case. It is certainly true, however, that the power to grant relief by way of compensation is not exercised in all cases of bills for specific performance. That power, as a general rule, exists only as ancillary or incidental to the power to grant other relief; and in cases for specific performance, it is only ■“ under special circumstances, and upon peculiar equities, as, for instance, in cases of fraud, or where the party has disabled himself by matters ex post facto, from a specific performance, or where there is no adequate remedy at law,” that the Court awards pecuniary compensation in lieu of other relief. 2 Sto. Eq., sec. 799; Rider & Trotter vs. Gray, et al., 10 Md., 282, 300; Bowie vs. Stonestreet, [449] et al., 6 Md., 419, 431. This case would seem to fall within the reason and scope of the principle upon which compensation may he awarded.
(Decided 29th February, 1884.)
In some cases the question of the amount of compensation is directed to he tried upon an issue of quantum dammjicalus, and in others hy reference to a master; but where the measure of compensation is matter of construction, or where it is dependent upon data plainly apparent to the Court, no such reference, is necessary. Here, the inquiry is, what is the fair equivalent in money of such house as the widow is entitled to receive under the covenant? The house designed originally by the husband for his wife is shown to he worth at least $6000; and taking the value of that house as a criterion, furnished hy the husband himself, the amount decreed to he paid hy the Court below is not more than is reasonable and proper. We shall therefore affirm the decree, with costs.
Decree affirmed, and cause remanded.